Thursday, 23 March 2017

The
manager of Labour’s Scottish branch office has cut a rather forlorn figure recently
as she attempts to hoist the flag of federalism as an alternative to
independence despite the obvious hostility of her party’s leader at Westminster. In fairness to her, she’s not the only one
attracted by the possibility of a federal structure for the UK; and I’ve long
wondered whether many independentistas
wouldn’t be prepared to settle for a truly federal UK as well. Gordon Brown has been using the word since at
least 2014, although it seems that his party is taking about as much notice of
him as it does of Kezia Dugdale.

There
is a serious problem with federalism, though, which I wonder if they’ve really
thought through. And the recent Supreme
Court decision on triggering Brexit hasn’t helped. A truly federal state depends on a clear
separation of powers between the federal authorities and the individual member
states, and stems from a recognition that the states are voluntary and equal
members of the union. Without a change
to the UK’s unwritten constitution, it seems to me that this is simply
unachievable; and the change required is so significant, that I can’t see the
UK Parliament ever accepting it.

The
whole constitutional settlement in the UK is based on the convenient fiction
that god invested power in the monarch who in turn graciously shared it with
parliament. The usual phrase for the
source of power and sovereignty in the UK is the quaint term “the Crown in
Parliament”. All laws stem from this
source of authority, not from the people.
In historical terms, it’s nonsense, of course; the truth is that
parliament gradually stripped the monarch of powers over the centuries. But the fiction is maintained and sustained
by a whole lot of meaningless pomp and ceremony, and it has one important
consequence, which is that what parliament decides, parliament can subsequently
undecide. And that right is absolute.

It’s
the underlying problem at the heart of the devolution settlement – power devolved
is power retained, and in terms of UK law, all the powers held by the Scottish,
Welsh and Northern Ireland parliaments are held only to the extent that, and
for as long as, the real source of power permits it to be so. That mindset came through loud and clear
during the Supreme Court hearing on triggering Brexit, and it seems to be at
the forefront of the Prime Minister’s mind as she approaches the repatriation
of powers following Brexit.

Above
all, it marks a key difference between devolution and federalism. Devolution is, and always has been, about
lending some powers to the new parliaments, but it isn’t about giving them
those powers. Even when that split is
enshrined in law, it is a law made under the same terms and the UK Parliament
has the same right to repeal or revise it.
Devolution can work on this basis, after a fashion, provided that there
is a modicum of good will all round.
Federalism can’t; the powers of the member states belong to those member
states and to them alone, and can only be surrendered on a voluntary basis.

So,
whilst a federal approach for the UK is not without its attractions, it
requires, in effect, a change to the UK Constitution to accept that the monarch
and the UK Parliament are not the fount of all sovereignty, and that the
constituent parts have their own sovereignty, as of right, which cannot be
removed by Westminster. To be blunt, I
see no chance of the Conservative Party ever accepting that, and very little
chance that the Labour Party will do so either.
In practice, the individual parts of the UK would need to become
independent first, and then agree to a new union based on a different
principle. The first part of that sounds
like a good idea to me; but I’m really not sure why the second would then look
attractive…

8 comments:

Anonymous
said...

I find it odd that no-one ever considers the thoughts of 'the English' in such matters.

I suspect England and 'the English' (those living in and identifying with English laws and customs) have no interest in federalism and certainly no interest in contributing to any additional expenses associated with such. Ipso facto, the issue is stone dead, done and dusted.

Why not spend more time thinking about how Wales could harness its resources to better accommodate its English, Welsh English, Welsh and immigrant populations to bring about betterment for the country.

It's as meaningless to consider the views of 'the English' in these matters as it is to consider the views of 'the Welsh'. Such sweeping phrases assume a degree of unanimous - or even majority - thinking which I doubt matches reality. Having said that, your basic point is correct - given that England forms the greater part of any proposed federation, without significant support in England the idea is a total non-starter. But that's the point of the post. It's fine for Labour to talk about federalism from a Scottish perspective (and under Scottish law, sovereignty is indeed vested in the people), but they're ignoring the fact that they're asking the majority member of the federation to completely revise the founding principle of its constitution. In my view, like yours, that isn't going to happen. Federalism, not matter how superficially attractive it might appear to those in Wales and Scotland who oppose independence, is not going to happen.

Neilyn,

"Not even if it becomes absolutely clear that a federal constitution is the only possible way of keeping the UK together?" I think not even then, because it wouldn't be the sort of UK to which they're wedded. For all their talk, I'm not sure that they're really as determined to preserve the union as they appear; give them a choice between the union with change, or Greater England without, I suspect that they'll opt for Greater England without. After all, it's only months since they opted to attempt a return to the imperial past rather than accept a future containing foreigners.

Labour are not advocating Federalism only in Scotland. They are doing in in Wales too, through the IWA - see https://mail.google.com/mail/ca/u/0/#inbox/15afad246741b8ceI would go for Federalism because - it would be a big advance on where we are now, and- you can always turn it into independence if the time is right. Hungary did this when leaving the Austro-Hungarian Empire, and eventually replaced the relationship with Vienna with one with Brussels. Sound familiar?Forget the English dimension. There is such a thing as leading, not following. Constitutions, like charity, begin at home. If Wales sorts itself out England will accept it. It will simplify the myriad problems which England faces, like the final death of London's imperial mind-set and broken political system.One important point - we do not want an APPOINTED Constitutional Convention, it must be directly elected - otherwise forget it. If the Assembly does not have full legal power to do this guess what? This does not matter terribly - create a fait accompli.Call your convention. Devise the Constitution as the elected members choose, I'm guessing Federal, keep the Queen, Defence a grey area, otherwise Dominion Status 1905-style. Oh yes, Written Constitution please, separation of powers, much as per US 1780 and 50 States. The Welsh would choose from the menu - a good thing surely that they choose for themselves for once? Then be the nth nation in the British Commonwealth to demand de facto independence from Westminster. A final break, as with Australia, may be some way away but who cares by then? We'd be free! And we could roll our sleeves up and work on survival, and climbing the economic rankings.

This part of your comment goes to the heart of what this post was about: "Written Constitution please, separation of powers, much as per US 1780 and 50 States." My problem is that I don't think a written constitution or separation of powers are on the table or likely to become so. And without them, 'federalism' is just a dishonest description of devolution; meaningless and transient, something which the centre can undo at any time.

So be it then. If it transpires that Westminster and the Unionist parties therein won't accept federalism as a means of finally answering the national aspirations of the Scots and the Welsh, as clearly articulated by the governments of both countries, within a continuing Union dominated by England, it sends a very clear message does it not? Namely, you belong to us until such time as you're strong enough to free yourselves from our domination. That could prove to be the undoing of the Union.

No they are not on the table.So put them there.Our present situation is that society is losing many of its bearings, political parties losing their historic justification, drifting to the close of a long reign, the Brexit upheaval. This is like a person going through divorce, bankruptcy or a serious Court trial. Lawyers can help because they know what tools to use, and light the way forward. Like the WRU whistling down a coalmine when they needed a big forward, you can whistle in the legal corridors, UCL say (Rawlins et al), or the Wales Governance Centre, and get well-intentioned and informed advice. In this case the advice is going to be "Well, ideally, if you possibly can, elect a Constitutional Convention!".We have to create this for ourselves because "it is not on the table" ie noone will do it for us.

What an excellent post, your third paragraph says it all and after the little unpleasantness we have seen in Westminster this week – a minor one as these things goes; we have seen the media reporting the joys of our democracy, usually with the backdrop of the House of Lords behind them. Another is that the parliament is the oldest in the world – wrong, Iceland is and the English parliament was not continuous as several monarchs closed them down. A Welsh Lord went on to tell the media that “we have to defend our democracy” -as there are far more non-elected members in Parliament than those elected, perhaps one step would be for him to step down, but don`t hold your breath as they say these things in order to “virtue signalling” and they don`t really mean it.As Uncle Joe Gobbles said – If you are going to tell a lie, make it a big un, or words to that effect.